State v. Cantu

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NOT DESIGNATED FOR PUBLICATION

No. 116,574

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JUAN F. CANTU,
Appellant.


MEMORANDUM OPINION

Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed November 17,
2017. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).

Before ARNOLD-BURGER, C.J., MALONE and POWELL, JJ.

PER CURIAM: Juan Fernando Cantu appeals the district court's decision revoking
his probation and ordering him to serve his underlying prison sentence. We granted
Cantu's motion for summary disposition in lieu of briefs pursuant to Kansas Supreme
Court Rule 7.041A (2017 Kan. S. Ct. R. 48). The State has filed no response.

On May 13, 2015, Cantu pled no contest to one count of possession of
methamphetamine with intent to distribute, one count of possession of cocaine, and one
count of aggravated endangerment of a child. On June 29, 2015, the district court
imposed a controlling sentence of 147 months' imprisonment but granted Cantu's motion
for a dispositional departure to probation for 36 months.

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At a hearing on December 14, 2015, Cantu admitted to violating his probation by
being terminated from employment, by using alcohol, and by being discharged from the
Courage to Change: Skills for Successful Living/Strategies for Success class. The district
court ordered Cantu to serve six days in jail as a sanction and extended his probation for
36 months.

At a hearing on August 12, 2016, the court found Cantu violated his probation by
being convicted of driving under the influence (DUI), a felony offense. According to the
journal entry, the district court revoked Cantu's probation based on his commission of a
new crime and ordered him to serve his underlying prison sentence. A transcript of the
August 12, 2016 hearing is not included in the record. Cantu timely appealed.

On appeal, Cantu claims the district court "erred in revoking [his] probation when
a jail sanction remained an available option." However, Cantu acknowledges that the
district court may forgo sanctions when the defendant commits a new felony while
serving a term of probation.

The procedure for revoking a defendant's probation is governed by K.S.A. 2016
Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions
of probation, the decision to revoke probation rests in the district court's sound discretion.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion
occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of
law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The party asserting the district court abused its discretion bears the burden of showing
such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012). A
district court abuses its discretion by committing an error of law in the application of
K.S.A. 2016 Supp. 22-3716 when revoking a defendant's probation. See State v. Still, No.
112,928, 2015 WL 4588297, at *1 (Kan. App. 2015) (unpublished opinion).

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K.S.A. 2016 Supp. 22-3716 generally provides that once a defendant has violated
the conditions of probation, the district court must apply graduated intermediate sanctions
before the court can revoke probation and order the defendant to serve the sentence
imposed. See K.S.A. 2016 Supp. 22-3716(c)(1)(A)-(D). However, pursuant to K.S.A.
2016 Supp. 22-3716(c)(8), the court may revoke probation without having previously
imposed an intermediate sanction if the offender commits a new felony or misdemeanor
while on probation.

Here, as Cantu acknowledges, the district court revoked his probation after finding
that he committed a felony DUI while on probation. Based on this finding, the district
court was not required to impose additional intermediate sanctions in this case. The
district court's decision to revoke Cantu's probation was not arbitrary, fanciful, or
unreasonable, and it was not based on an error of fact or law. Thus, we conclude the
district court did not abuse its discretion in revoking Cantu's probation and ordering him
to serve his underlying prison sentence.

Affirmed.